The Timing of Lawmaking
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The Timing of Lawmaking

Edited by Frank Fagan and Saul Levmore

Legal reasoning, pronouncements of judgment, the design and implementation of statutes, and even constitution-making and discourse all depend on timing. This compelling study examines the diverse interactions between law and time, and provides important perspectives on how law's architecture can be understood through time. The book revisits older work on legal transitions and breaks new ground on timing rules, especially with respect to how judges, legislators and regulators use time as a tool when devising new rules. At its core, The Timing of Lawmaking goes directly to the heart of the most basic of legal debates: when should we respect the past, and when should we make a clean break for the future?
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Chapter 9: Self-executing statutes in the administrative state

Adam M. Samaha

Abstract

Some statutes delegate authority to administrative agencies while others do not. Far less well known is that some statutes are self-executing while others are not. That is, some statutes announce legal norms that govern as of the statute’s effective date, while other statutes announce no such norm in advance of agency or other official action. Maintaining a practical distinction between self-executing and non-self-executing statutes can be challenging, but the models are different and they coexist in our legal system today. Thus, some famous modern statutes create law to govern social life even if an agency fails to act or flunks judicial review (e.g., parts of the Controlled Substances Act of 1970 and the Dodd-Frank Act of 2010), while other equally famous statutes depend on successful agency action to create such law (e.g., parts of the Clean Air Act of 1970 and the Affordable Care Act of 2010). This chapter specifies trade-offs across modern self-executing and non-self-executing statutes, identifies forces that lessen but do not eliminate the differences, and finds that courts have not effectively opposed either model. These model choices are more political and policy based than judicial or constitutional. When combined with other dimensions of choice such as specificity, breadth, complexity, personnel appointments, material resources, and decision sequencing, we can better understand the basic elements of statutory design and, therefore, the architecture of our legal system. Keywords: legislative design choices, self-executing statutes, delegation to agencies

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